Today, we have a guest post by on of my comrades in crime (that is, a fellow construction law blogger), Chris Hill. Here’s his official bio: Christopher G. Hill, LEED AP is Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals. His practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.
First of all, thanks again to Melissa for letting me post at her fine blog. She’s one of the more knowledgeable and cool Tarheels I know (and this is coming from a Blue Devil!). Now, on with the show.
As those who read my Construction Law Musings blog on a regular basis know, I am a huge proponent of getting a knowledgeable attorney involved in your construction contracting business early on. While we construction lawyers are generally seen as last resorts, we can actually be helpful and (dare I even say it?) save you money. How, you may ask, can paying a construction lawyer that ostensibly is only there when you have a claim actually save you money? Well, as you may have gathered by the title of this guest post, I’m going to tell you.
Two words: Disaster avoidance.
Litigation is a money, time and emotion draining process for those that don’t have the particular odd propensity of the litigator that makes them actually enjoy trials. Litigation takes money from the bottom line because no business this side of a cigarette or pharmaceutical company can do business planning to sue or be sued. For that reason, litigation cannot be treated as overhead and even in the case where you could get a judgment for any fees that you may spend, you are still out the cash and even then may never recover on the judgment. A contractor cannot make money through litigation (at least in my experience).
Even in the case where you are “right” and “should never lose” there is risk in court. Juries, arbitrators and judges sometimes go the other way. These are humans. They are fallible and in many ways unpredictable. Litigation is (and should be) a last resort.
The best way to avoid this result is a good contract and good advice from those of us who have seen the results of litigation on numerous occasions and that therefore know how to avoid it. Everything from the proper claim and notice procedures to a well scoped project are necessities up front. Aside from the “common sense” issues that you as a business person will see coming, an attorney can see the picky “traps” that are there and are counterintuitive. For instance, Virginia, unlike many other states, allows the waiver of mechanic’s lien rights in a contract. You wouldn’t want to miss this thinking that you “knew” that such a clause was unenforceable. [Editor’s Note: By comparison, in NC, such a waiver in advance is against public policy].
Much like your bi-annual visits to the dentist (yes, I compared my profession to one that is almost as popular), the relatively small expense of early review of your contracts and business practices can go a long way toward avoiding surprises and disastrous expenses later. In short, and as you learned in kindergarten, doing it right the first time is always easier than fixing the problem later.
My final advice: Add a lawyer to your team of advisers, you’ll be glad you did.
Thanks, Chris, for another fine post. And I completely agree: the number of hours spent on claims will vastly supersede the small cost for most companies/Firms to properly prepare and vet their contracts and proposals. Chris and I welcome your comments, questions, and thoughts!